As other writers have noted, historians have testified in a wide variety of cases. I do not have an exhaustive catalogue of types of cases in which historian testimony has offered, but a partial list would include:
1. discrimination cases, such as the famous Sears case;
2. constitutional cases, such as Brown v. Topeka Kansas Board of Education;
3. deportation cases, such as those involving claims of Nazi activity;
4. native American property rights cases;
5. actions between States, and other cases in which historical location of rivers determine property boundaries;
6. creationism cases;
7. tobacco cases, including product liability, states’ attorney generals’ parens patriae, and fraud claims;
8. product cases, typically those involving long latencies – e.g., asbestos, silica, vinyl chloride
9. medical research, ethical claims: radiation and other informed consent cases;
10. defamation cases against historians themselves.
11. reparation cases;
12. criminal cases against terrorists, involving claims of the historical nature of the alleged terrorists’ associations.
Historian testimony presents legal evidentiary issues, especially when the historian testifying acts as an advocate for a cause rather than as a witness whose testimony can be fairly evaluated by the jury. Historian opinion testimony seems particularly apt to derail in product cases.
Over the years, I have written critiques of historian testimony, with a focus on product liability cases, where historians often serve as cheerleaders for the party that retained them. See Nathan Schachtman, “On Deadly Dust And Histrionic Historians: Preliminary Thoughts On History And Historians As Expert Witnesses In Products Liability Cases,” 2 Mealey’s Litig. Rep. (Silica) 1, 1-2 (Nov. 2003). At the recent Fourth Annual International Conference on the History of Occupational and Environmental Health, in San Francisco (June 19 – June 22, 2010), I presented a paper, “Courting Clio: Historians and Their Testimony in Products Liability Litigation,” an abstract of which can be found on-line. Schachtman & Ulizio, Courting Clio – Historians and Their Testimony in Products Liability Litigation (June 2010). I have also blogged about the subject previously. See, e.g., How Testifying Historians Are Like Lawn-Mowing Dogs (May 15, 2010); A Walk on the Wild Side (July 16, 2010); Counter Narratives for Hire (Dec. 13, 2010).
In the current issues of Academe, Professors David Rosner and Gerald Markowitz describe their troubles as testifiers. See “The Historians of Industry” (November – December 2010). This most recent attack is the fourth, largely duplicative, publication in which the authors call me out for having the audacity to criticize their history of silicosis in the United States, and for suggesting that their testimony did not properly belong in a courtroom. I must now constantly check behind doors, under beds, above shelves, for the Pink Panthers – Rosner & Markowitz. Who knows where the fifth and subsequent re-publications will appear. I must say that I learning from their persistence.
In the past few years, historians who have testified for plaintiffs’ counsel, mostly in tobacco litigation, have nastily attacked their counterparts, historians who have testified for defense counsel in the same litigation. See, e.g., Robert N. Proctor, “Expert witnesses take the stand Historians of science can play an important role in US public health litigation,” 407 Nature 15 (Sept. 7, 2000); Alan Blum, “A Dissenting View of Robert Proctor by a Fellow Anti-Smoking Advocate” (Apr. 26, 2010) [last visited Dec. 13, 2010]; John C. Burnham, “In Defense of Historians as Expert Witnesses: A Rebuttal to Jon Wiener” (Mar. 29, 2010) [last visited Dec. 13, 2010]; Jon Wiener, “Big Tobacco and the Historians,” The Nation (March 15, 2010); Robert N Proctor, ‘‘’Everyone knew but no one had proof’’: tobacco industry use of medical history expertise in US courts, 1990–2002,” 15 (Suppl IV) Tobacco Control 117 2006; Louis M Kyriakoudes, “Historians’ testimony on ‘common knowledge’ of the risks of tobacco use: a review and analysis of experts testifying on behalf of cigarette manufacturers in civil litigation,” 15 (Suppl IV) Tobacco Control 107 2006.
Historians who testify for plaintiffs seem to have a problem with dissents from their positions. Rosner and Markowitz have extended the attack to those who have argued that any historian opinion testimony may be inappropriate, especially in product liability cases. Here is their most recent discussion of my writing on the issue:
“The first shot across the bow occurred in 2003, when Nathan Schachtman, an attorney with the Philadelphia-based firm McCarter & English, published an attack on us in Mealey’s Litigation Report: Silica. He accused us of writing a ‘jeremiad’ that ‘resonates to the passions and prejudices of the last century.’ He took us to task for our ‘prejudice’ that ‘silicosis results from the valuation of profits over people’ and said that we should point out that in Communist countries silicosis rates were much higher. ‘They fairly consistently excuse or justify the actions of labor. . . . They excoriate the motives and actions of industry’.
But Schachtman’s true agenda emerged in the middle of his third paragraph. ‘We could safely leave the fate of Rosner’s and Markowitz’s historical scholarship to their community of academicians and historians if not for one discomforting fact’, he wrote. ‘The views of Rosner and Markowitz have become part of the passion play that we call silicosis litigation.’
Schachtman’s article seemed to be saying that as long as academics spoke only to one another and had no influence beyond academia, they could be tolerated. But once they begin to affect that wider world, they needed to be put back in their place. All this despite the fact that at the time Schachtman’s piece was published, more than a decade after the publication of Deadly Dust in 1991, each of us had appeared on the stand in only one case.”
“The Historians of Industry” (November – December 2010). Rosner and Markowitz got many of their facts and their amateur psycho-analysis wrong. They have participated in litigation much more broadly than their anemic disclosure suggests. They have been listed in many silicosis lawsuits as plaintiffs’ expert witnesses, and they have given deposition testimony, for which they were compensated, in several silicosis cases. Markowitz has testified in vinyl chloride cases, and the pair has testified in lead paint cases.
As for my true agenda, I clearly spelled out a legal problem – historians, offering testimony along the lines of what Rosner and Markowitz had been giving in silicosis cases, should not be allowed to do so for several, compelling evidentiary reasons. As historians, I believe that Rosner and Markowitz can and should be tolerated. And they should be read by historians outside their close-knit community of labor and Marxist historians, and openly rebutted. In any event, as historians, Rosner and Markowitz may have a role, even an important role, in helping lawyers find their way to important documentary evidence, but I have serious doubts about whether they should occupy witness chairs.
Although Rosner and Markowitz’ testimony was an easy target in terms of their excesses, errors, and exaggerations, my true agenda was to exclude historian testimony that attempted to substitute for the jury’s own assessment of the primary evidence. Here is what I actually said:
“The work of Professors David Rosner and Gerald Markowitz raises important issues about the role historians seek to play in the litigation process. In writing about the social, labor, and political history of silicosis, Rosner and Markowitz interpret and draw inferences from an evidentiary display on the credibility, motives, and goals of industry, labor, and government.
Their ‘story’ is often tendentious, and rarely charitable to industry. They fairly consistently excuse or justify the actions of labor, even when those actions lacked contemporaneous (or subsequent) basis in scientific or medical fact. They excoriate the motives and actions of industry, even when supported by sound science, or when the plight of workers was ameliorated. They hint at, or announce, conspiracies to hurt workers. Every effort at industrial cost-savings is denounced; whereas little or no attention is paid to the huge expenditures made, often voluntarily, by industry to improve the health of workers.
Deadly Dust [Rosner and Markowitz’ book on silicosis] is a book that resonates to the passions and prejudices of the last century. The authors argue their case that silicosis results from the valuation of profits over people. Their thesis ignores the practical, often refractory problem, of motivating or mandating workers to take appropriate measures to protect themselves. Their ascription of motives and their evaluation of causality are often devoid of any empirical support. Their jeremiad against industry’s positions on scientific and medical issues is similarly unsupported and frequently demonstrable false. Witness how silicosis, as a serious, prevalent fatal disease has passed into the dustbin of medical history in the Western World. Compare the rarity of disabling silicosis in the United States with the high silicosis mortality in Communist countries, where profits are outlawed and labor controls the means of production. These observations and comparison embarrass the scholarship and the world view of Deadly Dust, but they receive virtually no acknowledgement.
We could safely leave the fate of Rosner’s and Markowitz’s historical scholarship to their community of academicians and historians if not for one, discomforting fact. Either directly through their participation in court cases as expert witnesses, or indirectly through opinions offered or sneaked into evidence, the views of Rosner and Markowitz have become part of the passion play that we call silicosis litigation. Their participation in the litigation process thus raises the question of exactly what is the proper role of historians in litigation.
Upon initial inquiry, historians would appear to have little or no role in the litigation process. Trial lawyers, in courthouses throughout the common-law world, try cases ranging from automobile wrecks to antitrust conspiracies, by researching, documenting, and adducing evidence of historical fact. At trial, the proof of historical facts relevant to claims and defenses proceeds under a system of rules of evidence, which have evolved and have been refined over centuries in the crucible of judicial experience.
The intrusion of historians into the litigation process thus raises several important problems. First, historians may claims to have ‘proven’ or ‘supported’ particular factual assertions, which they could not prove up in a courtroom with competent, admissible evidence. Their participationundermines the legal requirement of ‘primary sources’ for the proof of facts. Various exclusionary rules, ranging from the rule against hearsay to the best-evidence rule, dramatically limit the scope and content of what historians might actually offer at trial.
Second, historians will usually be inappropriate witnesses because they do not contribute anything beyond what trial lawyers may accomplish through competent proofs and argument to the trier of fact. Indeed, much of what historians do, in advancing a particular thesis, is argue from an evidentiary display, which may often be interpreted in various, competing ways. Generally, we have more than enough argument from trial lawyers. How historians could be helpful to the trier of fact is thus far from clear.
Finally, if historians were allowed to offer opinion testimony, much of what they would have to say might fail to satisfy any reasonable criteria of reliability. Although a decade has elapsed since the United States Supreme Court decided Daubert, trial courts have yet to address reliability challenges to historians and their opinions. The absence of published cases seems to result from the rarity of historians as expert witnesses. For the most part, historians are noted in only a few cases, typically involving issues such as state boundary disputes, navigability of rivers andriparian rights, Indian Tribal status, or Nazi deportations. The common themes to these cases are the arcane proofs, serious authenticity issues, and foreign language of the documentary evidence. None of these distinguishing features is present in historical opinion on the motives, credibility, and conduct of labor or industry on the control of silicosis in American workplaces.”
See Nathan Schachtman, “On Deadly Dust And Histrionic Historians: Preliminary Thoughts On History And Historians As Expert Witnesses In Products Liability Cases,” 2 Mealey’s Litig. Rep. (Silica) 1, 1-2 (Nov. 2003) (endnotes omitted).
Rosner and Markowitz have chosen to attack me for having an agenda, which dares to be different from their agenda – testifying for causes that have political significance to them, and being compensated for doing so. These authors, however, have failed to respond to my substantive challenges. Since my article appeared in 2003, several other writers have questioned the indiscriminate admission of historian testimony in cases. See, e.g., Maxine D. Goodman, “A Hedgehog on the Witness Stand — What’s the Idea?: The Challenges of Using Daubert to Assess Social Science and Non-scientific Testimony,” 59 Amer. L. Rev. 635 (2010); Maxine D. Goodman, “Slipping through the Gate: Trusting Daubert and Trial Procedures to Reveal the ‘Pseudo-Historian’ Expert Witness and to Enable the Reliable Historian expert Witness — Troubling Lessons from the Holocaust-Related Trials,” 60 Baylor L. Rev. 824 (2008); William G. Childs, “The Proper Role of Historians as Expert Witnesses,” DRI Annual Meeting (2007).
More important, since I wrote Histrionic Historians in 2003, courts have begun to address the admissibility of historian testimony. Recently in one of Markowitz’ cases, the trial judge, the well-respected Justice Francis E. Sweeney, ruled that Markowitz’ testimony was improper and had to be excluded. Quester v. B.F. Goodrich Co., Cuyahoga Cty. Ct. Common Pleas Case No. 03-50939 (Jan. 15, 2009). Justice Sweeney succinctly stated the problem, and the solution:
“Dr. Markowitz’s opinions as to the conspiratorial actions and motives of ‘the vinyl industry’ are excluded, as both within the ken of lay jurors, and impermissible attempts to introduce expert opinion as to the intent and motive of Defendants.
Dr. Markowitz’s area of expertise is history. Here the basis for his opinions is exclusively the voluminous documentation produced through vinyl chloride injury litigation. Dr. Markowitz neither holds, nor asserts, scientific expertise. In order to put forward admissible expert opinions based upon the documents at issue, those documents themselves must be admitted into evidence. However, Dr. Markowitz’s historic expertise, when limited purely to interpretation of the documents in evidence in this case, invades the ken of lay jurors. He is not qualified, nor offered, to testify as to the state of the art, or to the technical/scientific details in the documentation, but rather opines as to what the documents mean. In this regard, Dr. Markowitz is no more qualified than lay jurors, and as such his ‘conspiracy’ opinions invade the province of the jury.
Moreover, Dr. Markowitz’s interpretation of the documents and resultant opinions are replete with discussion of the intent and motives of ‘the industry’ or the authors of the documents. Such opinion is not appropriate for expert testimony in a court of law. Dr. Markowitz has placed evidence in the record that his book is well-regarded and legitimate historical scholarship, which the Court does not dispute. It is merely that the relevant opinions and scholarly arguments that he makes in his book are inherently ill-suited to the role of expert witness in court proceedings. His opinions related to scholarly arguments for the rationale, intent, and motive of various entities individually and collectively is more appropriately within the purview of counsel in argument rather than the expert witness on stand.”
Id. (footnotes omitted). ‘’
And that was a judgment from which there was no appeal.